The Rusk County Professional Employees Association, Local 608
(herein the Union), and Rusk County (herein the County) are parties
to a collective bargaining agreement dated July 13, 1999, covering
the period from January 1, 1999 through December 31, 2001 and
providing for binding arbitration of certain disputes between the
parties. On October 3, 2000, the Union filed a request with the
Wisconsin Employment Relations Commission (WERC) to initiate
grievance arbitration on a denial to Sheila Poradish (herein the
Grievant) of a reclassification to the position of Social Worker
III and requested the appointment of a member of the Commission's
staff to arbitrate the issue. The undersigned was designated to
hear the dispute and a hearing was conducted on February 22, 2001.
The proceedings were not transcribed. The parties filed briefs on
April 9, 2001. The County filed a reply brief on May 9, 2001, and
the record was thereupon closed.

To maximize the ability of the parties we serve to utilize the
Internet and computer software to research decisions and
arbitration awards issued by the Commission and its staff, footnote
text is found in the body of this decision.

6258

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ISSUE

The parties were unable to stipulate to an issue. The Union
would frame the issue as follows:

Did the Employer violate the expressed and implied terms of
the collective bargaining agreement when it denied Sheila Poradish
to be reclassified as a Social Worker III?

If so, what is the correct remedy?

The County would frame the issue as follows:

Did the County violate the collective bargaining agreement
when
it denied the request of Sheila Poradish to be reclassified from a
Social Worker II to a Social Worker III?

If so, what is the appropriate remedy?

The Arbitrator frames the issue as follows:

Did the Employer violate the express or implied terms of the
collective bargaining agreement or past practice when it denied the
request of Sheila Poradish to be reclassified from a Social Worker
II to a Social Worker III?

If so, what is the appropriate remedy?

PERTINENT CONTRACT
PROVISION

ARTICLE I ­
RECOGNITION

. . .

Section 1.03: The County
and the Association agree that at all
times it will abide by the laws of the State of Wisconsin as they
relate to collective bargaining, and to the rights of the
Association and all Association members.

OTHER RELEVANT
LANGUAGE

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ARTICLE IX ­ JOB
POSTING

Section 9.01 ­
Vacancy defined: A vacancy shall be defined as
a job opening within the bargaining unit not previously existing or
a job created by the termination of employment, promotion of
existing personnel, when the Employer decides the need for such a
job continues to exist.

Section
9.02: When a vacancy is to be filled, the position
shall be posted for seven (7) working days. The posting shall list
a summary of the duties, minimum qualifications required, the rate
of pay, and the effective date of the position.

Section
9.03: Any employee interested in such promotion may
sign the posting. The employee having the greatest seniority, who
is qualified for the position shall be given the position. If
there is a question of who is more qualified, the Employer shall
take education, ability, and experience into consideration. If,
within thirty (30) days, the employee's performance is not up to
the standard of qualifications required, or if the employee wishes
to return, he/she shall return to his/her former job. In this
event, the position shall be again posted, following the same
procedure above. Present employees shall be given an opportunity
to fill the position before a new employee is hired, if qualified.

BACKGROUND

The Rusk County Department of Health and Human Services
employs three different classifications of social workers, SW-I,
SW-II and SW-III, with the position of SW-III being the highest
classification within the bargaining unit represented by the Union
herein. There also exists a classification of Social Service
Worker, which is comparable in wage to a SW-I. At present, there
are twelve bargaining unit employees in the Department, only one of
which is a SW-III. Under departmental guidelines, reclassification
to SW-III is predicated upon meeting certain established criteria,
including, inter alia, a Bachelor of Social Work degree, five years
experience as a social worker and at least six graduate credits
toward an advanced social work degree.

The Grievant, Sheila Poradish, has a Bachelor of Arts Degree
in Social Work from Mount Senario College. She has been employed
by Rusk County since 1994. In June, 1995, she was classified as a
SW-I. In June, 1996, she was reclassified as a SW-II. In 1999,
she enrolled in a Masters Degree program at the University of
Minnesota ­ Duluth and has acquired eight credits toward her
degree. She is currently assigned to the Department's Children and
Family Services Unit. The Department's only SW-III works in the
Long Term Support Unit, thus there are no SW-IIIs in the Children
and Family Services Unit. On June 5, 2000, the Grievant made a
request for reclassification to SW-III to her superiors in the
Department and the Rusk County Board of Supervisors, which was
subsequently denied by the

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Personnel Committee of the Rusk County Board. On June 13, 2000,
Social Worker Supervisor Ted East sent the Grievant a letter
indicating that there were changes taking place in the hiring and
reclassification procedures, but not explaining what the changes
were. He recommended that if the Grievant were dissatisfied she
should follow the procedures available to her in the personnel
policy or the contract.

On July 12, 2000, the Grievant resubmitted her request, which
was denied by the Personnel Committee on August 2, 2000. On August
4, 2000, Gary Rivers, the Health and Human Services Director,
informed the Grievant in writing of the denial and explained that
the Committee's action was based on a perceived lack of need for an
additional SW-III at the present time. On August 15, 2000, the
Grievant filed a grievance based upon the denial of her request for
reclassification. The grievance was processed according to the
procedure set forth in the parties' collective bargaining agreement
without successful resolution and thereupon proceeded to
arbitration. Additional facts will be included, as necessary, in
the Discussion section of this award.

POSITIONS OF THE PARTIES

The Union

Appendix A of the parties' collective bargaining agreement
recognizes four classifications of social worker employees: Social
Services Worker, Social Worker I, Social Worker II and Social
Worker III. The Grievant is a Social Worker II. To become a Social
Worker III, an employee must meet the following specified minimum
criteria: 1) five years of social work experience, 2) a
Baccalaureate Degree in Social Work, 3) six graduate credits in
Social Work, 4) 72 hours of inservice training and 5) demonstrated
job skills. Two other social workers in the Department, with these
skills, have been promoted to Social Worker III and the Grievant's
qualifications are equal to or better than those of the other
employees based upon the exhibits produced at the hearing.

In the past, the County has maintained three Social Worker III
positions. There is no evidence that any of these positions have
been eliminated, nor that they have been bargained away. There is,
at present, however, only one Social Worker III in the Department.
Further, there is an opening for a Social Worker III in the
Children and Family Juvenile Intake Division, in which the Grievant
works.

The County argues that there is no need for an additional
Social Worker III at present. Nevertheless, the Grievant is
performing the duties of a Social Worker III, but only receiving
the pay of a Social Worker II, which is over $90 per month less.
By refusing to grant the Grievant a reclassification, the County
violated her rights as a member of the Union under Article I,
Section 1.03, and the long standing past practice of the parties in
reclassifying employees who meet the specified criteria. Therefore,
the grievance should be sustained and the Grievant made whole.

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The County

The contract has no provision addressing the promotion of
social workers to higher classifications. In such a situation, the
employer has broad discretion in determining the criteria and
circumstances for promotion of employees. New Britain Machine Co.,
45 LA 993, 995-96 (1965). Further, the contract does not specify
that the Department needs to have a specified number of Social
Worker IIIs, leaving that determination also within the employer's
discretion. Douglas County, Case 230, No. 55366, MA-9996 (Jones,
9/2/98)

Where the contract is silent, established practice may reflect
the proper response to a particular circumstance. Texas Utility
Generating Division, 92 LA 1308, 1312 (1989). In this case, the
County has in the past determined promotions to Social Worker III
based upon need as well as the meeting of established criteria.
Prior to 1989, the County promoted employees according to the State
Merit System, which required the Director's approval, as well as
the employee having specified qualifications. Since 1991, the
County has used an internal system for promotion which is based
upon the State Merit System. Since that time, all promotions to
the position of Social Worker III have included a finding of need
by the Director. The record reflects numerous situations where
Social Worker IIs had qualified for Social Worker III status, but
were not reclassified to Social Worker III because there was no
immediate need. This includes the current Social Worker
Supervisor, Ted East, who is also a former Union President. East
testified that he never understood a promotion to Social Worker III
to be automatic. The cases of reclassification cited by the Union
are unique. Those employees were promoted at a time when the
Department was undergoing a reorganizational experiment, which has
since changed.

At the present time, there is no need for another Social
Worker III. The current unit has two Social Worker IIs, two Social
Worker Is and two Social Service Workers. The Social Worker III
position entails some supervisory and team leadership functions,
which are not needed at the time. The Social Worker Supervisor
oversees the unit, but in his absence the staff works
collaboratively and does not need someone to assume the
Supervisor's role. Even the Grievant concedes that the other
Social Workers have skills and abilities similar to her own and
while the County does not deny the Grievant's qualifications, it
maintains that a reclassification is not warranted in the absence
of need. The grievance should, therefore, be dismissed.

The Union Reply

The Union did not file a reply brief.

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The County Reply

The Union's reliance on past practice focuses on
qualifications without addressing the criteria of demonstrated
need. Both the Department Director and the Social Worker
Supervisor testified to the additional factor of a demonstrated
need for an employee who can perform supervisory duties when needed
as a precondition to reclassification. There is no merit to the
Union's assertion that qualifications alone should dictate an
employee's reclassification, otherwise any employee who qualified
for a supervisory position would be entitled to it, whether there
was a need for an additional supervisor or not.

There is also no merit to the Union's suggestion that the fact
that there were three Social Worker IIIs at one time creates a
minimum staffing requirement. There was initially only one
Supervisor III. The other two were hired in unusual circumstances
which no longer apply. One of those employees has since been
promoted to Supervisor and another has left County employment,
leaving only one Supervisor III at present, which the County deems
sufficient.

The Grievant does not presently perform Supervisor III duties,
as the Union asserts. The Supervisor III position carries with it
additional responsibilities, as well as a supervisory role in the
absence of the Supervisor, which the Grievant concedes she does not
perform. Since the Grievant's responsibilities are not unique and
are consistent with the others in her department, she is not
entitled to a reclassification and the grievance should be
dismissed.

DISCUSSION

In a case such as this one, it is typically not the
arbitrator's role to second guess the use of discretion by the
Personnel Committee in denying a reclassification request by making
a de novo examination of the stated criteria for reclassification
and replacing the Committee's use of judgment with his own.
Rather, the arbitrator's function is to determine whether the
reclassification decision, whatever it may be, was the result of a
rational, deliberative process and that the Committee was not
arbitrary, capricious or unreasonable in its actions.

The Union argues that the Grievant is entitled to be
reclassified to the position of Social Worker III as a matter of
right. This right is predicated on a combination of contract
language and alleged past practice. It is claimed that the
contract provides for the position of Social Worker III and that
historically the County has maintained three such positions in the
bargaining unit, although there is at present only one. Further,
in the past elevation to the position of Social Worker III has been
merited by obtaining certain specified qualifications, which the
Grievant has.

The contract itself has little to say about this circumstance.
As indicated by the Union, the position of Social Worker III is
included in Appendix A, which sets out the wage schedule

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for the different positions. Further, Article I, Section 1.03, does
provide that the County will recognize and abide by the rights of
Association members. Beyond this, however, the contract is silent.
There is no reference to the procedure, if any, for advancement,
nor to the qualifications necessary to achieve it. Typically,
where a contract does not specify a procedure or establish criteria
for reclassification, the authority to determine the basis and
method for reclassification falls within management's residual
powers. So long as management does not act arbitrarily or
unreasonably, it has broad discretion in exercising this authority.
Based upon the contract alone, therefore, it cannot be said that
there is an automatic right to advancement.

The Union maintains further, however, that there is a binding
past practice of promoting employees to the level of Social Worker
III upon their acquiring certain specified qualifications and that
there is a further practice within the Department of maintaining
three Social Worker IIIs in the bargaining unit. The County
contends that there is no consistent past practice in this area and
that, further, the lack of controlling contract language leaves the
area of reclassification within management's discretion.

It has been said that, "Past practice may be used (a) to
clarify ambiguous contract language; (b) to implement general
contract language; or (c) to create a separate, enforceable
condition of employment. Some arbitrators use past practice to
modify or amend clear and unambiguous contract language." 1/ In
any event, however, "In the absence of a written agreement, past
practice, to be binding on both parties, must be 1) unequivocal; 2)
clearly enunciated and acted upon; 3) readily ascertainable over a
reasonable period of time as a fixed, and established practice
accepted by the parties." 2/

1/ The Common Law of the Workplace: The
Views of Arbitrators
§ 2.19 (T. St. Antoine 1st ed. 1998).

2/ Celanese Corp. of
America, 24 LA 168, 174 (Justin, 1954).

With respect to reclassification, the record reveals that
since at least 1991 the County has established certain
qualifications for attaining the level of Social Worker III. These
are set forth in Joint Exhibit 7, as follows:

Qualifications for Social Worker III
Classification

Experience

Must have five years of
social work experience in this Agency
(other Agency experience that is comparable may be accepted,
however not necessarily on a year by year basis).

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Training

Workers with a BSW
must acquire (6) graduate credits. Workers
with a non-BSW must acquire (12) graduate credits. In addition, 72
hours of inservice training is required. Graduate credits and
inservice training hours must be determined to be determined to the
worker's job by the Director and the Supervisor.

Demonstrated
Skill

With appropriate
supervision and latitude for individual
judgement, is able to perform the following: Provide services to
families or individuals involving difficult personal and social
problems which require skilled study, evaluation and planning/
[sic] Carries out plans for needed services and refers and assists
client to other resources as needed. Participates in the
development of policy, interprets program and policy to community,
and participates in community planning as assigned. Establishes
and maintains working relationships within the agency and the
community.

It is not disputed that the Grievant meets these
qualifications.

It is disputed, however, whether the County has an established
practice of reclassifying social workers whenever they meet the
specified qualifications, regardless of need. The record reveals
that since 1973, the County has had twelve social workers who have
been with the County the requisite five years to qualify as a SW-III. Of those twelve, five
have been promoted to SW-III. Of the
seven who were not promoted, one did not meet the other
qualifications and the qualifications of another are not known.
Five, including the Grievant, had obtained the other requisite
qualifications. Of the five who were promoted, three were promoted
in five years or less. One, the current Director, was promoted in
five years and two months. One, the current Social Worker
Supervisor, was promoted in six years. Thus, of the ten employees
who have met the qualifications for SW-III since 1971, only three
were promoted to SW-III within five years of beginning employment.
This does not rise to level of being a fixed, established practice.
The record regarding the County's practice is not particularly
instructive, however, due to the changes the Department has
undergone over the years. The current job description for SW-III
was created in 1993, subsequent to the reclassifications of JoAnn
Friedel and Deb Klund. Since that time, no other bargaining unit
members have been reclassified to SW-III. The job description
describes the duties of a SW-III, as follows:

. . .

GENERAL
SUMMARY:

This is the advanced
agency-trained social work position which
provides services to a select caseload involving difficult personal
and social behavior problems requiring skilled study, evaluation,
and planning. There exists

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substantial latitude for independent action
regarding not only
case management planning but also in carrying out plans and
coordinating with other service providers. Included is the
undertaking of in-depth social studies utilizing a variety of
resources from which to compile comprehensive reports and base
decisions.

REPORTING
RELATIONSHIPS:

Reports to:
Social Work Supervisor

Directs Work
of: Individual contributor. Occasionally delegates
cases or work to another social worker.

ESSENTIAL
FUNCTIONS OF THE JOB:

Spends over
50% of time conducting juvenile delinquency court work
(Juvenile Intake).

Interprets police reports, medical evaluations, and
educational assessments in order to make decision
regarding whether to deal with juvenile informally
through D.S.S. or to refer him/her to D.A. for formal
court proceedings.

If case
is dealt with informally, makes decision regarding
appropriate supervision and treatment.

If case
goes to court, monitors court proceedings and
evaluates police reports to make sure they meet the state
standards for evidence.

Gathers data from various sources and condenses it into a
report in order to make recommendations to the court
regarding disposition.

Conducts
independent child abuse and neglect investigations in
order to determine whether protective measures need to be
taken on child's behalf and other appropriate forms of action.

Provides
individual and family counseling consistent with Family
Based Theory in order to establish appropriate programs and/or
treatment plans.

Performs
assessments of contracting services.

Participates in
the development of policy, interprets programs and
policy to the community, and participates in community program
as assigned in order to foster public relations and awareness.

There is no evidence as to what the job description and specified
duties for SW-III were prior to 1993. There is also little
evidence comparing the previous job description for SW-III to the

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duties actually being performed by those social workers who were
awarded reclassifications. It is not possible, therefore, to
compare the Grievant's circumstances to those of any social worker
reclassified to SW-III to prior to 1993.

Likewise, there does not appear to be a consistent practice
within the Department of maintaining at least three SW-IIIs on
staff. On January 16, 1992, JoAnn Friedel and Deb Klund were
promoted to SW-III. At that time, Ted East was also a SW-III.
This is the only time the Department had three SW-IIIs at the same
time, a situation which ended when East was promoted to Supervisor
in 1997. When Friedel accepted other employment in 1998, Klund
remained as the only SW-III. Prior to 1992, there had never been
more than one SW-III at a given time.

The thornier issue is the question of need. The County
maintains that a decision to add a SW-III involves a two-prong
approach, not only requiring a qualified employee, but also having
a demonstrated need of such. The County asserts that, regardless
of the Grievant's qualifications, there is not a need for another
SW-III at present, and it was on this basis that her request was
denied. The Union argues, however, that the Grievant is, in fact,
performing the listed duties of a SW-III and was told as much by
her Supervisor. Inasmuch as she is performing the duties and has
the qualifications, she should be classified as a SW-III.

The evidence on this point is troubling to me. As stated
previously, the Grievant has the qualifications for SW-III, as they
are set out in Exhibit 7, and her resume, contained in Exhibit 8,
bears this out. The County does not dispute this point. In fact,
the Director testified that he did not even review the Grievant's
qualifications when the request was made because he had already
determined that no SW-III was needed at present and, therefore, her
eligibility was irrelevant. It is this question of need which is
at the crux of the issue. Director Rivers testified that present
need is the threshold issue in a reclassification analysis. If
there is no present need for a SW-III, he does not address the
question of eligibility. In the Grievant's case, upon receiving
her request, he determined there was no demonstrated need for
another SW-III and, therefore, recommended to the Personnel
Committee that the request be denied. He did not tell the Grievant
he did not see a need for another SW-III, nor that need was a
criterion, nor that he would recommend denial of her request on
those grounds. After the Grievant was informed of the denial,
Supervisor East wrote her a letter dated June 13, 2000, which did
not explain the basis for the denial, nor, again, mention
demonstrated need as being a precondition for reclassification.
Rather, it remonstrated with her for a perceived inappropriate
display of disappointment and recommended that she pursue the
procedures available under the contract or personnel policy.
Consequently, she applied again on July 12. Director Rivers,
again, made no effort to explain the reclassification criteria or
to inform her of his position. The prerequisite of demonstrated
need only first appears in Rivers' August 4 memorandum to the
Grievant informing her of the second denial.

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The County's behavior in this sequence of events is troubling
for a number of reasons. First, it seems unusual to use
demonstrated need as a basis for reclassification. Need implies a
vacancy which requires filling because some necessary function is
not currently being provided. In such a case, where the County
perceived such a need, it would be required, under Article IX of
the contract to post the position and fill it in the manner therein
provided. Indeed, under the language of the contract, were the
County to attempt to fill a "demonstrated need" by circumventing
the posting process it might well subject itself to a grievance on
that basis. Reclassification requests, on the other hand,
typically occur when employees either meet a set of predetermined
qualifications, or when they believe their present duties conform
to a higher classification. Reclassification, therefore, is not so
much a matter of filling a need as it is a recognition that the
employee is, in fact, already filling it.

Regarding the Grievant's current duties, she testified that
she is already performing the functions of a SW-III, as set forth
in the County's position description (Exhibit 6). She further
testified that as recently as January, 2000, Supervisor East told
her she was performing the duties of a SW-III as set forth in the
job description. Two points bear mentioning here. First, Director
Rivers testified as to having no opinion on the Grievant's duties
or level of performance as compared to the other staff in her unit.
For him, the analysis ended once he had determined there was no
"demonstrated need" for another SW-III and he inquired no further.
Second, East did not avail himself of the opportunity to refute the
Grievant's testimony regarding their conversation, which lends
support to her contention. Based on the Grievant's testimony,
therefore, and the failure of her two immediate supervisors to
contradict it, I take it as established that the Grievant does, in
fact, perform the duties set forth in the written job description
for the SW-III position.

The County's position, however, is not based on the written
job description. It contends, instead, that there are additional
duties, which are a necessary part of the SW-III position and which
the Grievant does not perform. According to Director Rivers, the
position of SW-III requires greater responsibility than that of SW-II. The employee must be
able to work independently and must be
able to develop policies and procedures without supervision.
According to the testimony, the Grievant already does these things.
Most importantly, however, a SW-III must be able to act in a
supervisory capacity when the supervisors are not present. In the
opinion of Rivers and East, there is no current need for an
employee to perform the quasi-supervisory functions of a SW-III
and, in fact, the current SW-III, Deb Klund, does not do so.
According to East, in the absence of a supervisor, the social
workers work in a collaborative fashion, with none taking a lead
role. This is the linchpin of the County's denial of the
Grievant's request. Yet, the job description, which has been in
place since 1993, makes no mention of the supervisory role, which
the County contends is the sine qua non of the SW-III position.
Nor did Rivers, East or the Personnel Committee ever apparently
supplement the description, either orally or in writing, to include
these supervisory duties for the edification of any prospective
candidate.

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Equally problematic are the implications of this practice as
it has developed. The County and Union have bargained the position
of SW-III into the contract. The County then developed a written
job description and established qualifications for the position,
which it has the power to do. The qualifications were last updated
in 1991 and the job description in 1993. According to the
testimony of Rivers and East, however, the County subsequently did
two things. First, it added additional supervisory duties to the
position outside the written description. Second, it made a
determination that there is no need for bargaining unit employees
to perform those duties. These decisions, taken together, have the
effect of rendering the position of SW-III a nullity. No future
employees can qualify for the post, because it requires the
performance of duties which the County will not assign. Once the
current SW-III leaves her position, it will effectively cease to
exist.

Yet, according to the contract, the position of SW-III does
exist. It has not been bargained away. Furthermore, there is a
written job description and there are written qualifications for
the position which have been in existence for over eight years
without amendment. Additionally, the evidence establishes that the
Grievant not only meets the qualifications, but also performs the
duties of the position as set out in the description. By the
testimony of the Director, it was only the lack of need for an
employee to perform the unwritten supervisory duties of a SW-III,
which he further testified that no one else, not even the existing
SW-III, performs, that barred the Grievant from reclassification.
This is an unreasonable and untenable position, which has the
effect of permitting the County to assign the Grievant the listed
duties and responsibilities of a SW-III, while denying her the
corresponding title and compensation. Under the language of the
contract, the County may create a position, develop a job
description, post it and fill it or decline to fill it as its
perception of need dictates. When an employee is qualified for the
position and is performing its stated functions, however, it may
not arbitrarily and unreasonably withhold a reclassification.
Inasmuch as the Grievant's qualifications and duties conform to the
written criteria established by the County, I find that is what
occurred here.

The County asserts, under New Britain Machine Co., 45 LA
993
(McCoy, 1965), that its discretion in awarding reclassifications is
nearly unfettered. I do not disagree with that precedent, but find
it to be inapposite. New Britain Machine Co. involved an employee
who grieved the awarding of a vacant factory position to a less
qualified, less senior employee where there was no contract
language requiring the company to give priority to qualified senior
employees. This case does not involve filling an open position,
but rather whether the County may, without reasonable
justification, withhold reclassification from an employee who
presents the qualifications and performs the duties of the higher
classification. I hold that it cannot. In so doing, I do not
substitute my judgment for the County's, because I find that there
was no exercise of judgment on the County's part based upon the
established criteria and that, since the fulfillment of those
criteria by the Grievant is satisfactorily established, the
reclassification was unreasonably withheld.

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Based upon the foregoing, and upon the record as a whole, I
hereby issue the following

AWARD

In denying the Grievant a reclassification to the position of
SW-III, the County violated the express and implied terms of the
parties' collective bargaining agreement. It is therefore ordered
that the County shall make the Grievant whole by:

Forthwith reclassifying her to the position of SW-III;
and

Paying backpay representing the difference between the
established
rates for SW-II and SW-III from June 5, 2000 to the date of this
award.

I will retain jurisdiction over this award for a period of 90 days
in order to resolve any issues that may arise over its
implementation.